Combating
Human Trafficking
Mr. Govind
Prasad Thapa, DIG
Human trafficking is a growing menace. This
sickening industry is flourishing. On one hand, it has to be dealt with wider
and stern laws and, effective enforcement while at the same time, we have to
protect the rights of victims and support their rehabilitation. It all requires
wide vision, closer understanding, cooperation, coordination and honest
commitment of the nations concerned. It also requires the concerted efforts of many
agencies and individuals. As the problem is international, we need
international measures to deal with it.
There are several issues, regarding this
crime, which require clarity. Among them, the definitions of the term
trafficking, prostitution, migration, and repatriation need a clear perspective.
It is said that the definition of trafficking
is not universal today. There is no unanimity on it. There is a need for
identifying the characteristics of the word
‘trafficking’ and universally defined it. Previously trafficking was more
or less concerned with prostitution in women and children only. But these days
trafficking has been for various other reasons too. Prostitution may be one of
them. It is, also, not limited to women and children only. The current
definition of trafficking usually includes the non-consensus movement of people
within or across borders for the purpose of exploitation of labor.
The economic, social, and cultural factors
seem to have compelled people to migrate for better livelihoods and better
conditions across borders. The poor education and lack of awareness
among most women and children have made them dependent on brokers and their relatives. These brokers often abuse and exploit them at the origin,
transit, and destination point in the name of assistance. It only worsens
the situation. On one hand, there is demand for the right to free movement in search
of better economic activities, and on the other, there is every possibility of
abuse and exploitation.
The migration may take place with the full consent
of affected persons. Then the ‘consent’ becomes a very important and deciding
factor in such a situation. We have to be very cautious while investigating
such cases. We should be able to distinguish ‘voluntary migration’ from
‘trafficking’. But again it is a very difficult part. The affected person may
have gone with full consent to work in a foreign country but not to work in
slavery-like conditions. Therefore the consent could be out of intimidation, coercion, fraud, and out of the influence of power or authority. We
have to be very much sure while investigating cases of such nature. We must be
particularly concerned whether the consent was voluntary or otherwise.
It is rather difficult to find out the mens rea and actus reus
elements while conducting investigations of such crimes. Many cases have failed
in the courts because of the absence or lack of evidence against the suspect. A
minor, who is taken to a destination (with or without consent) to work, may not
produce anything of evidential value to substantiate the investigation. In
such a situation the prosecution may not be ascertained. Very often, suspects
go scot-free in circumstances of absence or lack of evidence.
Another issue, which is directly related to
trafficking, is the right to choose a profession. There has been growing demand
for the freedom to choose one’s profession. Which, if we concede, would
allow choosing prostitution as one’s profession. We ought to be very much clear
about prostitution. We must have a clear perspective on whether it is a
problem of morality, labor, human rights, migration, public law, and order, or
crime. There is confusion and very often the views of non-governmental
organizations and States differ. Once we are clear about it then we can be in a
position to treat it accordingly.
There is also a demand for the right to
migration for livelihood. The demand calls for the complete withdrawal of
restriction and intervention. But, at the same time, the right to protection
from slavery-like practices must be respected and addressed. Then, first of
all, the modality to punish offenders in an extraterritorial jurisdiction,
without challenging the rights of an affected person needs to be developed. The countries of origin, transit, and
destination have to agree upon a suitable modality bilaterally or
multilaterally.
The issue of repatriation or return of
affected persons to their origin states is equally complex. There is an appeal
that the repatriation of affected persons should be done on the basis of the
voluntary consent of the affected person; that the affected person should be
provided with all rights to legal matters, assistance, restitution, and
compensation. There is equally great pressure upon States that affected
person’s concerns should get preference to legal matters. So there is a need for a clear national and international perspective on these issues too.
There has been strong criticism against the
existing criminal justice system. Today, our criminal justice system is
considered ineffective to deliver justice to many victims. The system is being
criticized for being too autocratic and formal, expensive, unfair, slow, and
humiliating. There is a demand for a new
paradigm of victim protection to be part of jurisprudence and judicial process.
There are several agencies associated with the system but their efforts are not
coordinated. The criminal justice system should be made more accessible and
less intimidating for people who are victims of crimes. Police, as well as
other law enforcement agencies, need to develop a more positive, sympathetic
attitude towards them.
It is said that the crux of the problem of
trafficking is the appalling poverty in the villages followed by the lack of
education and awareness. Most of those girls, who were sold, did not know what
kind of life they would lead in the new destinations. Policing and
administrative matters may help but ultimately the key to solving the problem
lies in alleviating poverty and generating employment opportunities. There is also a need for improving our familial, social, and cultural beliefs, rites, and
customs.
Considering all these push and pull factors
in trafficking, a short-sighted strategy is never going to help control this
crime. A clinical, rather than symptomatic, approach will have to be given
preference. For that reason, we need to be more organized, systematic,
committed, concerted, and coordinated in our thoughts and actions.
Workshop
on Trafficking in Women and Children in South Asia, Aswin 1, 2056, Kathmandu, Nepal
